KALI PRASAD SINGH Vs. RAM PRASAD SINGH

JUDGEMENT

(1.) The fate of this appeal by the defendant turns on the construction of a simple deed of gift Ex. A-7. Its language is plain, the intention of the donor is clear and yet it happens that a learned Single Judge of the High Court has in second appeal reversed what we consider to be the obviously correct conclusion reached by the District Judge in first appeal.

(2.) One Beni Singh had three sons and many properties. On a division among them, the properties set out in the 'B' Schedule to the plaint fell to the share of two of his sons, Sheo Dihal Singh and Nepal Singh Subsequently, a partition inter se of these properties came to be made by decree of court on June 14, 1945 whereby properties in the 'C' schedule to the plaint were allotted to Debi Prasad and Lal Bahadur (second defendant), children of Nepal Singh. 'D' Schedule properties with which we are not concerned in this suit were allotted to Kali Prasad (first defendant, also appellant, before us). 'E' schedule items were set apart for the sons of Sheo Dihal. We are not concerned with these items either. However, Debi Prasad instituted a suit for partition and separate possession of his share in 'C' schedule properties against Lal Bahadur (second defendant) on March 23, 1949. During the pendency of that suit Debi Prasad executed a registered gift deed in favour of the appellant, Ex. A-7 dated January 25, 1950. Later on, a decree for partition of the 'C' schedule properties was passed and the half share of Debi Prasad was allotted to him which is set out in the plaint as 'F' schedule properties. Thus, it is apparent that Debi Prasad had 1/6th share in the 'B' schedule properties which was transformed into 1/2 share in 'C' schedule properties or full ownership in 'F' schedule properties, through the process of two litigations. At the time of the gift, Ex. A-7, although a decree allotting the 'C' schedule properties to the donor, Debi Prasad, and his brother. Lal Bahadur, the second defendant, had been passed it would appear that in the revenue records this change had not been notified and, going by those records, all the 'B' schedule properties were still shown as belonging jointly to the co-owners including Debi Prasad, the donor. (The learned District Judge has mentioned this fact in his judgment). The gift deed, Ex. A-7 relates to the share of Debi Prasad in the 'B' schedule properties, and the question that falls for decision is as to whether the entire 1/6the share in the 'B' schedule properties owned by Debi Prasad, and later concretised into the 'F' schedule properties, were covered by the gift and transferred to the first defendant. the donee or whether only a 1/6th share of the 'F' schedule properties was conveyed by the gift. To complete the story, it has to be mentioned that after the execution of Ex. A-7 Debi Prasad purported to convey his 5/6th share in the 'F' schedule properties to the plaintiff and the 7th defendant who brought a suit for recovery of possession is the Munsif's' court in 1956, three years after the death of the vendor, Debi Prasad. The learned Munsif granted a decree to the extent of 5/6th of the 'F' schedule properties on a certain construction of Ex. A-7, while in appeal the learned District Judge dismissed the suit on the ground that Ex. A-7 was a gift of the entire 'F' schedule properties. Fortunes fluctuated in the second appeal where the learned Munsif's decree was restored, and if we may anticipate our conclusion at this stage, we are inclined to uphold the dismissal of the suit agreeing with the views of the learned District Judge.

(3.) The plaintiff, in the trial court, put forward the extreme plea that the gift was a nominal document but that plea, faintly revived by learned counsel here, need not detain us as there is no merit in it and three courts have negatived it.